IN THE CASE OF: BOARD DATE: 19 October 2023 DOCKET NUMBER: AR20230002973 APPLICANT REQUESTS: Upgrade of his dishonorable discharge to honorable. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statements (three) * Character reference letters (six) * Criminal background checks (three) * Various Civilian Certification Documents and Identifications * Court-martial documents * two DD Forms 214 (Armed Forces of the U.S. Report of Transfer or Discharge) (one shows the name of another individual) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC90-10388 on 22 May 1991. 2. The applicant states: a. He was not allowed due process. He was not given a fair trial. He was innocent of all charges. He never intended to possess, sell, or distribute marijuana. He told his lawyer that he had nothing to hide, that he would take the stand. It was his advice not to! He was not able to face his accuser or question him! In most languages, this would have been called a "a quick trial." Guilty before proven innocent, in which all of it was circumstantial evidence! He has been fighting this for many years. He had no drug charges before his military service or during his time in service, and after his service and still to this day! He has sent many documents to show his life since. He has also worked on and off for Fort Ord transporting troops for Kuwait, to the maneuvers on post. Also, he has transported officers and enlisted Soldiers to training exercises. b. He has always respected the uniform and performed his military duties while he was in service. He went to his company commander, asking to be transferred to Vietnam (many times). His unit company was mostly Soldiers who were short timers and had many drugs on post. This was the reason his cousin and him volunteered, to get away from all the drugs, at that time in San Diego, CA. Yet, he ended up in a company with drugs! He tried and tried to transfer out! He asked for his voice to be heard, in person for what really happened to him. Even while in Fort Leavenworth, two Criminal Investigation Division (CID) agents came to see him. He told them everything and they said they would get back with him, but never did. 3. The applicant enlisted in the Regular Army on 15 September 1969 for two years. 4. On 9 July 1971, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice, for behaving himself with disrespect towards a superior commissioned officer, on or about 6 July 1971. His punishment included reduction to E-3, forfeiture of $25.00 pay for one month, and 5 days extra duty. 5. Before a general court-martial on 2 December 1971, at Fort Bragg, N.C., the applicant was found guilty of one specification of wrongfully having in his possession 78 pounds, more or less, of marijuana; and one specification of wrongfully attempting to sell marijuana. The court sentenced him to confinement for 3 years, forfeiture of all pay and allowances, reduction to E-1, and a dishonorable discharge from the service. The sentence was approved on 3 January 1972 and the record of trial was forwarded for appellate review. 6. The U.S. Army Court of Military Review affirmed the findings and sentence on 12 September 1972. 7. General Court-Martial Order 1488, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 27 December 1972, noted that the applicant's sentence had been affirmed and ordered the dishonorable discharge duly executed. 8. The applicant was discharged on 10 January 1973. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1a, as a result of court-martial. His service was characterized as dishonorable. He was assigned Separation Program Number 292 (court-martial) and Reentry Code 4. He completed 2 years, 1 month, and 14 days of net active service this period with 5 days of lost time. 9. The applicant petitioned the ABCMR requesting upgrade of his dishonorable discharge. On 22 May 1991, the Board voted to deny relief and determined the applicant had not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested. 10. In the processing of this case, a search of the CID database was requested for a Report of Investigation and/or Military Police Report pertaining to the applicant. The search revealed no records pertaining to the applicant. 11. The applicant provides the following (provided in entirety for the Board): a. Three self-authored letters that provide details surrounding his court-martial and the effects of his discharge on his personal life. b. Six character reference letters that collectively attest to the applicant's work ethic, his good reputation, and the impact of his discharge on his family. c. Criminal records check from that show a records check revealed no record on him. 12. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 13. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. 3. A majority of the Board found the evidence of post-service good conduct and character reference letters provided by the applicant sufficient in support of a clemency determination. Based on a preponderance of evidence, a majority of the Board determined the applicant’s character of service should be changed to under honorable conditions (general). 4. The member in the minority found insufficient evidence of in-service mitigating factors and found the character reference letters and evidence of good post-service conduct provided by the applicant insufficient in support of a clemency determination. Based on a preponderance of evidence, the member in the minority determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show his character of service as under honorable conditions (general). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to an honorable character of service. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. c. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 11, paragraph 11-1 provided that a member would be given a dishonorable discharge pursuant only to an approved sentence of a general court- martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NR) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002973 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1